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Beavers v. Director of Revenue

Court of Appeals of Missouri, Southern District, First Division

March 25, 2015

TIMOTHY BEAVERS, Appellant,
v.
DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent

APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY. Honorable Don M. Henry, Associate Circuit Judge.

For Appellant: Jacob Garrett, West Plains, Missouri.

For Respondent: Chris Koster, Attorney General, Rachel M. Jones, Assistant Attorney General, Jefferson City, Missouri.

JEFFREY W. BATES, J. - Concur. DANIEL E. SCOTT, J. -- Concur.

OPINION

Page 319

WILLIAM W. FRANCIS, JR., J.

On May 19, 2013, the Director of Revenue (" Director" ), revoked the driving privileges of Timothy Beavers (" Beavers" ), pursuant to section 577.041,[1] for failure to submit to a breath test after Beavers was stopped for driving while intoxicated (" DWI" ). On March 12, 2014, a post-revocation hearing was conducted and the trial court found in favor of the Director. We affirm the judgment of the trial court.

Factual and Procedural Background

The record reveals that at 10:50 p.m. on May 4, 2013, Officer Wes Ellison (" Officer Ellison" ), of the Willow Springs Police Department, was traveling westbound on Main Street in Willow Springs. A vehicle traveling eastbound on Main Street crossed the centerline, forcing Officer Ellison to move to the right side of the roadway to avoid being struck. Officer Ellison then turned and followed the vehicle, observing it cross the centerline again, then proceed down the middle of the road.

Officer Ellison initiated a traffic stop and identified the vehicle's driver as Beavers. Beavers fumbled when asked to produce

Page 320

his proof of insurance and driver's license; Officer Ellison smelled a strong odor of alcohol emanating from Beavers' vehicle; and when Beavers got out of his vehicle, Officer Ellison observed Beavers stumbling and walking slowly. Officer Ellison asked Beavers whether he had been drinking and Beavers replied, " I just came from the bar," where he had been drinking. As Beavers spoke, Officer Ellison smelled a strong odor of alcohol on Beavers' breath.

Officer Ellison went to his vehicle to turn off the emergency lights and instructed Beavers to stay at the rear of his patrol vehicle. Instead, Beavers walked up to the passenger side of the patrol vehicle. Officer Ellison then instructed Beavers regarding the Horizontal Gaze Nystagmus (" HGN" ) field sobriety test. Prior to beginning the test, he noticed Beavers' eyes were bloodshot and watery. He twice instructed Beavers to focus on the end of his pen with his eyes and to keep his head still. When Officer Ellison began to move his pen, Beavers stared straight at him.

Officer Ellison asked Beavers whether he understood his instructions for performing the test and Beavers stated, '" I know what you're doing[,] . . . I'm just coming from the bar and going home, can't you give me a break?" ' Officer Ellison asked Beavers if he thought he should be driving and Beavers replied, " no." Officer Ellison was unable to complete the HGN and did not attempt to perform any other field sobriety tests. He then placed Beavers under arrest for DWI. Officer Ellison called for assistance and Officer Brian Jackson (" Officer Jackson" ) responded to the scene. Upon Officer ...


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